State ex rel. Division of Family Services v. Oatsvall

612 S.W.2d 447, 1981 Mo. App. LEXIS 2696
CourtMissouri Court of Appeals
DecidedFebruary 18, 1981
DocketNos. 11941, 11942, 11939, 11944, 11937, 11949, 11940, 11945, 11927, 11947, 11936, 11931, 11930, 11946, 11951, 11950, 11943, 11938, 11935, 11953, 11929, 11933, 11952 and 12048
StatusPublished
Cited by9 cases

This text of 612 S.W.2d 447 (State ex rel. Division of Family Services v. Oatsvall) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Division of Family Services v. Oatsvall, 612 S.W.2d 447, 1981 Mo. App. LEXIS 2696 (Mo. Ct. App. 1981).

Opinion

PER CURIAM:

These consolidated appeals arise from purported modifications of child support rendered in hearings to show cause for failure to pay child support by an associate circuit judge in Mississippi County, Missouri. Appellant, Division of Family Services, as assignee of child support rights vesting in recipients of A.F.D.C. payments by virtue of pre-existing judgments and orders, opposed the modification judgments by motions to set aside for irregularities in their entry, filed all but one1 of the 24 underlying proceedings. The appeals are taken from the trial court’s ruling on appellant’s motions in each case, and in the case of the exception just noted, where no such motion was filed, from a modified entry of judgment, in an action to establish paternity, made July 15, 1980.

In these motions, appellant asserts that the modified judgments are irregular in that they were made on the court’s own motion, without proper service of process on appellant (Div. of Family Services) or appellant’s assignor and without findings of changed financial conditions or agreement of parties to modify previously existing child support orders. These allegations go to irregularities patent on the records of the underlying proceedings cognizable as a proceeding under Civil Rule 74.32, which permits a judgment to be set aside for irregularities on the face of the record.2 Viewed as proceedings under Rule 74.32, appellant’s motions in the underlying proceedings are direct attacks upon the modified support orders entered therein, instituted by motion instead of petition and are independent proceedings. In Re Jackson’s Will, 291 S.W.2d 214, 219-220[6][7, 8] (Mo.App.1956); accord; In Re Marriage of Bradford, 557 S.W.2d 720, 724[2] (Mo.App.1977). Thus, the orders entered upon appellant’s motions to set aside in these cases are themselves appeala-ble. In Re Marriage of Bradford, supra; accord; In Re Jackson’s Will, supra.

The records of the proceedings below are very similar. Except for two [451]*451cases,3 entry of the purported modified judgment of child support occurs on June 3, 1980. In no case, exceptions included, do the purported modified entries of judgment relate to any motion of parties for such relief, nor do they occur within the time, the 30 day period, permitted under Rule 75.01, V.A.M.S., for the court to act on its own initiative. With one exception, appellant’s motions are taken up and ruled upon July 15 or 18,1980.4 The records in four of the proceedings below reflect that the court overruled appellant’s motions to dismiss and thereafter made nunc pro tunc entries of judgment relating back to the challenged modifications.5 The records in two of the cases reflect further entries of modification after appellant’s motions were overruled.6 In the remainder of the proceedings below, further modified entries of judgment were made after sustention of appellant’s motions attacking the earlier modifications. Again, the records of these proceedings reflect no motion for modification filed by either party. In fact, the July 15, and July 18, 1980, Docket entries in seventeen of these proceedings state that the “June 3, 1980 Motion [to modify] was the courts’ [sic] own motion” .. .; that “the state was not present at any hearings set for June 3, 1980” . ..; and that “any motion to modify is the court’s own motion.”7 In eight of the proceedings below, show cause orders have been issued for noncompliance with those additionally modified judgments and proceedings held thereon.8 In one of these cases, a further modified entry of judgment has been made.9

The records of the proceedings below thus clearly reflect that the trial court’s action in these proceedings was entirely unilateral, insofar as any modification of underlying judgments, or final orders related to child support, is concerned. As set forth previously, the recitations contained in the docket sheets declarative of the trial court’s initiative in these proceedings and the absence of any motion for modification of child support filed by any party herein, or even reference to any such motion filed by any party, can only support a conclusion that the trial court acted unilaterally with respect to every child support modification entry in these proceedings. In so doing, as appellant argues, the court below has acted [452]*452beyond its jurisdiction, as it cannot, ex mero motu, set itself in motion nor does it have power to determine questions unless they are presented to it in a manner prescribed by law.10 State v. Goodman, 406 S.W.2d 121, 126[8] (Mo.App.1966). Jurisdiction to decide concrete issues in a particular case is limited to those presented by parties and their pleadings and anything beyond is cor-am non judice and void. Id.; see also Footnote (5), p. 126. Moreover, lacking jurisdiction in the case, the trial court had no jurisdiction to entertain any further motions or pleadings which might otherwise have affected the proceedings. State v. Hawkins, 361 S.W.2d 852, 859[13] (Mo.App. 1962). The records of these proceedings reflect the existence of valid judgments, entered prior to any purported modification thereof by the trial court and, with respect to which, under Rule 75.01, it had lost jurisdiction to amend or modify either on its own motion or the motion of any party,11 the court’s purported amendments and modifications, nunc pro tunc or otherwise, were therefore void and subject to collateral attack. Berry v. Chitwood, 362 S.W.2d 515, 517[2] (Mo.1962); Troupe v. Board of Ed. of City of St. Louis, 582 S.W.2d 356, 358 L.C. (Mo.App.1979); Schenberg v. Schen-berg, 307 S.W.2d 697, 701[9] (Mo.App.1958). The modified entries of the trial court related to child support were invalid attempts to extend its statutory jurisdiction by judicial fiat. Schenberg v. Schenberg, supra, p. 701[8]. Therefore, all of the entries made by the trial court, in each proceeding below, purporting to modify the provisions for child support, inclusive of any purported further modification thereof, are void and without affect.

One further matter affecting the trial court’s jurisdiction of the cause must be touched upon. The records of the underlying proceedings reflect that in eleven of the cases below the associate circuit judge, Edward C. Graham, who entered the orders herein contested, had previously appeared as counsel for one of the litigants, or on behalf of the Division of Family Services to enforce assigned child support rights.12 Canon 3 C(l), (Sup. Court Rule 2, Code of Judicial Conduct), requires that a judge should disqualify himself “in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: ... (b) he served as a lawyer in the matter in controversy ...

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State Ex Rel. Div. of Family Serv. v. Oatsvall
612 S.W.2d 447 (Missouri Court of Appeals, 1981)

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Bluebook (online)
612 S.W.2d 447, 1981 Mo. App. LEXIS 2696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-division-of-family-services-v-oatsvall-moctapp-1981.